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WikiLeaks Document Release 

http:/ / wikileaks.org/wiki/CRS-RS20647 
February 2, 2009 

Congressional Research Service 
Report RS20647 

Authority of a President to Modify or Eliminate a National 

Monument 

Pamela Baldwin, American Law Division 
Updated August 3, 2000 

Abstract. :President Clinton created a number of new national monuments, using authority given the President 
under the Antiquities Act of 1906. Many of the designations were controversial and renewed discussion of that 
Act and whether a President can modify or eliminate a Presidentially created national monument. This report 
examines that question. 



http://wikileaks.org/wiki/CRS-RS20647 



Order Code RS 20647 
August 3, 2000 



CRS Report for Congress 

Received through the CRS Web 



Authority of a President to Modify or Eliminate a 

National Monument 

Pamela Baldwin 
Legislative Attorney 
American Law Division 



Summary 



President Clinton created a number of new national monuments, using authority 
given the President under the Antiquities Act of 1906. Many of the designations were 
controversial and renewed discussion of that Act and whether a President can modify or 
eliminate a Presidentially created national monument. This report examines that 
question. The report is not expected to be updated. 



Both the President and the Congress currently can create “national monuments,” a 
type of conservation unit created from federal lands. Since 1933 and until recently, 
monuments were managed by the National Park Service in the Department of the Interior. 
President Clinton has created a number of new national monuments and has charged 
agencies other than the National Park Service with the management of several of them. 1 
The President exercised the authority given the President under the Antiquities Act of 
1906, 2 but the creation of the new monuments proved controversial, both with respect to 
particular areas designated and with respect to the process by which the monuments were 
created. 3 



1 For a discussion of national monuments in general, and of those created by President Clinton, see: 
Carol Hardy Vincent and Pamela Baldwin, report for Congress RL30528, National Monuments 
and the Antiquities Act. As to whether assignment of management of a national monument by an 
agency other than the National Park Service might constitute a “reorganization” of the government, 
see Pamela Baldwin, General Distribution Memorandum: Legal Issues Raised by the Designation 
of the Grand Stair case-Escalante National Monument, December 13, 1996. 

2 Act of June 8, 1906, ch. 3060, 34 Stat. 225, codified at 16 U.S.C. §§ 431-433. 

3 Because the Antiquities Act involves action by the President, Presidential designation of a 
national monument does not trigger the procedures usually required under the National 
Environmental Policy Act (NEPA). The Antiquities Act is silent as to procedures to create a 
national monument, stating only that the President shall “proclaim” one. Critics assert that 
declaring monuments, especially large ones, without the usual environmental studies and public 
participation is out-of-step with other federal land actions, and proposals to modify the Antiquities 

(continued...) 



Congressional Research Service ♦♦♦ The Library of Congress 






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Under Article IV of the Constitution, Congress has the power to make needful rules 
and regulations regarding the territory and property of the United States. Over the years, 
Congress delegated considerable land management authority to the President, including 
the authority in the Antiquities Act for the President “in his discretion to declare by public 
proclamation ... national monuments.” Strong Presidents expanded on the authorities 
delegated by Congress and many withdrawals and reservations were made that critics 
charged exceeded the delegated powers. 

Eventually, Congress reasserted control over withdrawals and reservations of public 
lands by hmiting actions that could be taken by the President or the Secretary of the 
Interior. This posture is especially evident in the land management statutes enacted in 
1976, most notably in the Federal Land Policy and Management Act of 1976 (FLPMA), 4 
which required certain approvals of Congress for large withdrawals, repealed many 
previous statutory authorities of the President, and even repealed any authority of the 
President to make withdrawals implied by the acquiescence of Congress in the actions of 
previous Presidents. 5 However, FLPMA conspicuously left the Antiquities Act in place, 
with no discussion of why that choice was made. The FLPMA provisions regarding 
Secretarial withdrawal authority may shed additional light on the issue of revocation and 
will be discussed further below. 

Although few monuments have ever been abolished by Congress (as opposed to being 
folded into another conservation designation), and no monument has ever been terminated 
by a President, 6 the question has arisen as to whether a President lawfully could modify a 
previously designated monument. At first glance, it would appear that this question 
should be answered in the affirmative since Presidents certainly have modified or revoked 
executive orders, and at times executive orders and proclamations have been used 



3 (...continued) 

Act have been submitted in the Congress. Opponents of these proposals argue that the Antiquities 
Act should not be changed because it provides a valuable avenue to take prompt protective actions 
to safeguard valuable national treasures and monuments typically provide economic benefits to 
surrounding communities. 

4 Act of October 21, 1976, Pub. L. No. 94-579, 90 Stat. 2743, codified in part at 43 U.S.C. §§ 
1701 et seq. 

5 Uncodified section 704(a) reads in part: “Effective on and after the date of approval of this Act, 
the implied authority of the President to make withdrawals and reservations resulting from 
acquiescence of the Congress (U.S. v. Midwest Oil Co., 236 U.S. 459) and the following statutes 
and parts of statutes are repealed: ....” 

6 See comments of John Leshy at: Press Briefing by George Frampton, Acting Chair of the Council 
on Environmental Quality and John Leshy, Solicitor of the Department of the Interior, June 9, 
2000 . 




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interchangeably to carry out land actions. 7 But some see the proclaiming of a national 
monument as a special category of action that may not simply be undone. 

When a President issues a proclamation on matters either within the President’s 
inherent powers or to execute a delegated authority, the proclamation has the force of 
law. 8 



An attorney general’s opinion concluded that a President could validly modify a 
monument because the Antiquities Act directs that a monument “in all cases shall be 
confined to the smallest area compatible with the proper care and management of the 
objects to be protected.” 9 Numerous Presidents have modified previously created 
monuments. However, the Opinion also concluded that a President could not eliminate 
or terminate a monument established by previous Presidential action. The Opinion noted 
that there was no separate statutory authority for the President to revoke or terminate a 
monument, and therefore any authority that existed for this purpose must be implied by the 
other powers given the President in the Antiquities Act. The Opinion then reasoned that 
because the President had no inherent authority over lands, the President was acting only 
with authority delegated to him by Congress; a monument reservation was therefore 
equivalent to an act of Congress itself; and the President was without power to revoke or 
rescind a monument reservation. 

In this regard, the Opinion cited a previous opinion that concluded that a President 
could not revoke a reservation of land made pursuant to a delegation of congressional 
authority, because doing so would be repealing or altering an act of Congress. 10 The 



7 The Antiquities Act authorizes the President to “proclaim” monuments. It does not appear that 
the form of the President’s action - a proclamation rather than an executive order - is significant. 
One congressional study distinguished the two instillments by stating that an executive order relates 
to actions within the executive branch and a proclamation typically affects citizens and “since the 
President has no power and authority over individual citizens and their rights except where he is 
granted such power and authority by a provision in the Constitution or by statute, the President’ 
proclamations are at best hortatory so far as the general public is concerned unless they are based 
on statutory or Constitutional authority.” Executive Orders and Proclamations: A Study of a Use 
of Presidential Powers, Committee on Government Operations, 85th Congress, 1st Sess. at vii 
(December, 1957). However, both types of instruments have been used to create forest reserves. 
(See Establishmen t and Modification of National Forest Boundaries — A Chronologic Record 
1891-1973. Compiled by the Forest Service, Department of Agriculture. (1973).) For example, 
the Act of March 3, 1891, ch. 561, 26 Stat. 1103 authorized the President to proclaim forest 
reserves, which reserves were created variously by proclamations and executive orders, a fact that 
was reflected in the 1897 act (Act of June 4, 1897, ch. 2, 30 Stat. 1 1, 36) that authorized the 
revocation or vacating of executive orders or proclamations creating forest reserves under the 1 89 1 
Act. 

8 See Jenkins v. Collard, 145 U.S. 546, 560-561 (1891) and cases involving executive orders: e.g. 
Independent Meat Packers Ass’n v. Butz, 526 F. 2d 228, 234 (8th Cir. 1975), cert denied 424 U.S. 
966 (1976); Gnotta v. United States, 415 F. 2d 1271, 1275 (8th Cir. 1969). 

9 39 Op. Atty. Gen. 185 (1938) (Opinion). 

10 Id., at 187, citing 10 Op. Atty. Gen. 359, 364 (1862) (an opinion cited with approval in 17 Op. 
Atty. Gen. 168 (1881) and 36 Op. Atty. Gen. 75, 79 (1929)), which stated: “... A duty properly 

(continued...) 




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Opinion distinguished the authority of a President to make general temporary land 
withdrawals or to create forest reserves, because both of those statutes provided express 
authority for the President to modify or eliminate reservations made pursuant to those 
acts. 11 All of these opinions are old and may reflect a more limited view of Presidential 
authority over land that might have changed over the years. 12 

Section § 204(j) of FLPMA, the Act that repealed most of the withdrawal authorities 
of the President and Secretary of the Interior and imposed new Congressional controls 
over large withdrawals that might be made by the Secretary after 1976, also specified that 
the Secretary could not make, modify, or revoke any withdrawal created by Act of 
Congress or “modify or revoke any withdrawal creating national monuments under the Act 
of June 8, 1906 (34 Stat. 225; 16 U.S.C. 431-433) This provision came from the 
House bill, H.R. 13777, as introduced and as reported. The relevant committee report 
states: 



“[the bill] would also specifically reserve to Congress the authority to 
modify and revoke withdrawals for national monuments created under 
the Antiquities Act .... These provisions will insure that the integrity 
of the great national resource management systems will remain under 
the control of the Congress.” 13 

The conference report does not mention the provision. 

The FLPMA language addresses only actions of the Secretary, while the Antiquities 
Act is worded in terms of actions the President may take. Presidential proclamations 
creating national monuments typically read that they “hereby” withdraw or reserve lands 
- i.e. are a current withdrawal by the President. Arguably any subsequent actions taken 
by a Secretary to carry out the withdrawals are more in the nature of record changes to 



10 (...continued) 

performed by the Executive under statutory authority has the validity and sanctity which belong 
to the statute itself, and, unless it be within the terms of the power conferred by that statute, the 
Executive can no more destroy his own authorized work, without some other legislative sanction, 
than any other person can. To assert such a principle is to claim for the Executive the power to 
repeal or alter an act of Congress at will.” 

11 Id., at 188. The 1910 Act is the Act of June 25, 1910, ch. 421, 36 Stat. 847, the “Pickett Act,” 
which is one of the statutes whose authority the President expanded with the acquiescence of 
Congress, and the Act of June 4, 1897, ch. 2, 30 Stat. 11, 36, which expressly authorized the 
revocation or vacating of executive orders or proclamations creating forest reserves under the Act 
of March 3, 1891, ch. 561, 26 Stat. 1 103 (codified at 16 U.S.C. § 471 until its repeal by FLPMA 
in 1976). In the National Forest Management Act (Pub. L. 94-588, 90 Stat. 2949, 2957), 
Congress provided that forest reserves could only be returned to the public domain by an act of 
Congress. 16 U.S.C. 1609(a). 

12 This is especially true with respect to authorities which Presidents applied expansively in a 
pattern of actions to which Congress acquiesced. United States v. Midwest Oil Co., 236 U.S. 459 
(1915). However, there has been no pattern or even an instance of Presidential revocation of 
monument designations. In addition, arguably the era of expansive Presidential powers was 
reversed by FLPMA. 

13 H.R. Rep. 94-1163 at 9 (1976). 




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reflect withdrawals already legally made by the President. If a President were to attempt 
to revoke a monument declaration, presumably the revoking proclamation would similarly 
terminate the previous withdrawals, and subsequent actions taken by a Secretary to reflect 
that revocation again could be characterized as merely record-keeping changes made to 
reflect the action already taken. If the President lacks authority to revoke monuments and 
monument withdrawals, then this distinction between withdrawals of a President versus 
withdrawals of a Secretary does not matter. 

However, it appears from the breadth of the committee report language that Congress 
may have believed that controlling revocations by the Secretary in this regard would 
operate to control the revocation of national monument withdrawals - i.e. to control the 
actions of the President. If this was the understanding of Congress, it may be possible to 
argue that the general controls in FLPMA over large withdrawals made by the Secretary 
were also intended to control withdrawals made by the President under the 1906 Act. 
Arguably, the last part of the committee report language seems to indicate that Congress 
may have believed its withdrawal language was in fact adequate to control Presidential 
withdrawals. 

Whether this is a fair reading of FLPMA and whether controlling withdrawals or 
revocations made by the Secretary effectively controls the President under the Antiquities 
Act are issues that are not clear. Arguably the FLPMA language was not effective in this 
regard because courts are reluctant to find statutes repealed by implication 14 and this 
would seem especially true of a statute that so carefully and extensively repealed or 
modified so many other acts, but did not amend or repeal the Antiquities Act. In addition, 
uncodified section 701(a) of FLPMA expressly states that the Act should not be construed 
to repeal any existing law by implication, and Presidents have created large-acreage 
monuments since enactment of FLPMA. 

Summary. We have found no cases deciding the issue of the authority of a President 
to revoke a national monument. While in FLPMA Congress expressly limited the authority 
of the Secretary of the Interior to revoke monument withdrawals and reservations, that 
language arguably does not affect the President’s authority under the 1906 Act, which 
FLPMA neither amended nor repealed. No President has ever revoked a previously 
established monument. That a President can modify a previous Presidentially-created 
monument seems clear. However, there is no language in the 1906 Act that expressly 
authorizes revocation; there is no instance of past practice in that regard, and there is an 
attorney general’s opinion concluding that the President lacks that authority. 



14 TV A v. Hill, 437 U.S. 153, 189 (1977), quoting Morton v. Mancari, 417 U.S. 535, 549 (1974).